Kimbrough v. Neal, No. 18-3153 (7th Cir. 2019)Annotate this Case
Kimbrough dated the mother of daughters, ages five and seven, who eventually revealed Kimbrough had molested them for two years. Kimbrough was convicted and sentenced to 80 years’ imprisonment. The judge considered Kimbrough’s lack of criminal history and Kimbrough’s abuse of a position of trust. Kimbrough's counsel argued the court abused its discretion in imposing that sentence but never challenged his sentence under Indiana Appellate Rule 7(B), which allows the court to revise a sentence that "is inappropriate in light of the nature of the offense and the character of the offender.” A split panel of the Indiana Court of Appeals sua sponte reduced his sentence under Rule 7(B). The Indiana Supreme Court vacated, holding Rule 7(B) should not have been invoked sua sponte. Kimbrough then sought post-conviction relief, arguing ineffective assistance of counsel for failing to challenge the sentence under Rule 7(B). The trial court and Indiana Court of Appeals denied relief, stating: “Kimbrough has not established that there is a reasonable probability that, if appellate counsel had made a Rule 7(B) challenge, the result ... would have been different.” Granting Kimbrough’s petition for federal habeas relief, the district court found that because panels of the Indiana Court of Appeals reached opposite conclusions, Kimbrough necessarily had a reasonable probability of success and had satisfied Strickland’s prejudice prong. The Seventh Circuit reversed, stating that a federal court considering a 28 U.S.C. 2254(d) habeas petition cannot disagree with a state court’s resolution of a state law issue.